First Amendment expert: TSA has stronger argument in Ye dispute

Calls from Sen. Rick Scott, Sen. Ashley Moody and former governor Charlie Crist, among other leaders, to cancel rapper Ye’s upcoming concerts at Raymond James Stadium may carry moral weight, but, legally, a First Amendment scholar says the Tampa Sports Authority (TSA) has stronger grounds.

On Monday, Scott, Moody and a coalition of political and community leaders gathered at the Florida Holocaust Museum and urged the Tampa Sports Authority to cancel two scheduled performances by Ye, formerly known as Kanye West. The officials argued that a publicly owned venue should not host an artist who has repeatedly made antisemitic remarks and released a song titled “Heil Hitler.”

The Tampa Sports Authority responded that while it condemns antisemitism, it also respects free speech protections guaranteed under the U.S. Constitution.

According to Clay Calvert, a non-resident senior fellow at the American Enterprise Institute and former Professor Emeritus at the University of Florida Levin College of Law, the law largely favors the Sports Authority’s position.

“The stronger argument is with the Tampa Sports Authority,” said Calvert. “Once a government creates a forum for expressive events, then a fundamental principle under the First Amendment is the government cannot intervene.”

At the center of the dispute is a legal concept known as viewpoint discrimination, a doctrine that generally prevents government entities from allowing some viewpoints while excluding others.

Calvert compared the principle to allowing pro-life speakers access to a public forum while denying access to pro-choice speakers.

He also referenced the white nationalist Richard Spencer’s controversial appearance at the University of Florida in 2017 as an example. “The University had to host Richard Spencer, even if they didn’t like the viewpoint,” Calvert said.

That same principle, he argues, applies to Ye performing at Raymond James Stadium.

Scott and Moody have repeatedly emphasized that the stadium was built with taxpayer dollars and therefore taxpayers should have a say in who performs there. Calvert said the opposite is true from a constitutional standpoint.

Senator Rick Scott speaking against Kanye West’s antisemitism at the Florida Holocaust Museum. Photo by Aaron Styza.

“It makes it much harder to exclude them,” he said. “The fact that the stadium was built by taxpayer dollars actually triggers the First Amendment right for Raymond James.”

Had Ye booked a privately owned venue instead, the legal analysis would be different. If it were at a private venue, like Jannus Live, they could cancel the show at their discretion because the First Amendment right would not be triggered.

“Were the TSA to cancel Ye – and the pressure being applied is by two senators and Charlie Crist, who don’t want him to perform because of his antisemitism – that is considered viewpoint-based discrimination,” he said.

The distinction is important because the First Amendment generally protects even deeply offensive speech. Though there are exceptions. A category of hate speech called “fighting words,” direct, face-to-face verbal attacks intended to provoke an immediate confrontation, is not generally protected.

“It’s about context,” Calvert added, and in Ye’s case, he argues, the controversy stems from musical expression rather than direct confrontation.

The TSA can condemn Ye’s remarks, Calvert said, while still being legally obligated to allow the concerts to proceed.

For now, Ye remains scheduled to perform at Raymond James Stadium June 26 and 28.

The TSA declined to comment further on the controversy.

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